Gonzales v. Pacific Greyhound Lines

• Decision Date: 21 February 1950
• Citation: Gonzales v. Pacific Greyhound Lines, 34 Cal.2d 749, 214 P.2d 809 (Cal. 1950)
• Parties: GONZALES v. PACIFIC GREYHOUND LINES et al. S. F. 17938.
• Court: California Supreme Court

Page 809

214 P.2d 809

34 Cal.2d 749

GONZALES v.PACIFIC GREYHOUND LINES et al.

S. F. 17938.

Supreme Court of California, in Bank.

Feb. 21, 1950.

Rehearing Denied March 20, 1950.

Robert G. Partridge, San Francisco, Noland & Lawson, Salinas, and Wallace O'Connell, San Francisco, for appellant.

Hoge, Pelton & Gunther, Leo V. Killion and Reginald M. Watt, San Francisco, for respondents.

SPENCE, Justice.

This is an action for damages for the wrongful death of Ralph Daniel Gonzales.It was originally commenced by Jeraldine Gonzales, as surviving widow, and Kenneth David Gonzales, a minor, claiming to be the son of the decedent.William Gonzales, admittedly the son of the decedent by a previous marriage, was permitted to intervene in the action.The decedent was killed on February 11, 1946, when his taxicab crashed into a Greyhound bus that had skidded out of control and was blocking the highway a short distance above a sharp turn around which the decedent, coming from the opposite direction, traveled to the point of impact.

The action has been twice tried.On the first trial, which was before the court without a jury, the defendants stipulated as to liability for the accident, leaving for determination only the issues of heirship and the amount of damages.By the judgment entered at the conclusion of that trial, the widow was awarded funeral expenses and William Gonzales recovered the sum of $1,800, but Kenneth David Gonzales was allowed nothing, the court finding that he was not the child of the decedent.PlaintiffKenneth David Gonzales thereupon moved for a new trial, and it was granted upon the court's statement that 'the evidence (was) insufficient to justify' its finding in negation of plaintiff's paternity claim since section 195 of the Civil Code provides that 'the presumption of legitimacy of children born in wedlock can only be disputed by the husband or wife or descendant of one or both of them and the Pacific Greyhound Lines is not in that class.'

The second trial, which was confined solely to the rights of plaintiffKenneth David Gonzales, was had before a jury.The trial court, over plaintiff's objection, permitted defendants to introduce evidence in challenge of his legitimacy, and it refused plaintiff's offer of defendants' stipulation on the first trial in admission of their liability for the accident.The jury returned a verdict in favor of defendants.From the judgment accordingly entered, plaintiff appeals, contending that the said two major rulings of the trial court were prejudicially erroneous.His position is well taken on both points in the light of the record and the law applicable thereto.

Plaintiff presented evidence which entitled him to claim the presumptions of legitimacy as controlling in his favor.Thus it was indisputably established that Jeraldine Gonzales and the decedent were married on December 11, 1942; that plaintiff was born on August 2, 1943; that the decedent was not impotent; and that the decedent and Jeraldine Gonzales had lived together as husband and wife from the date of their marriage up to several months after the birth of plaintiff.Accordingly, it becomes immaterial whether the presumption of plaintiff's legitimacy be considered conclusive, Code Civ.Proc. sec. 1962, subd. 5, or disputable, Code Civ.Proc. sec. 1963, subd. 31;see, also, Civ.Code, sec. 193, for defendants would not be in a position to argue the point.

Even where the presumption of legitimacy is a disputable one, challenge can be made 'only by the husband or wife, or the descendant of one or both of them.'Civ.Code, sec. 195.By reason of this statutory limitation, the following persons have been barred from questioning the legitimacy of a child born in wedlock: the state in a criminal prosecution for nonsupport of an alleged illegitimate child, In re Madalina, 174 Cal. 693, 695-696, 164 P. 348, 1 A.L.R. 1629; the beneficiaries named by the will of the deceased husband, bearing no relation to the testator but opposing the claim of his alleged daughter as a pretermitted heir, In re Estate of Lee, 200 Cal. 310, 314, 253 P. 145; collateral heirs of the decedent contesting distribution of the estate to his daughter as sole heir, In re Estate of McMurray, 114 Cal.App. 439, 442, 300 P. 72; the unmarried father seeking determination of the parentage of the child born to the mother while married.Serway v. Galentine, 75 Cal.App.2d 86, 89, 170 P.2d 32.Likewise here, defendants are not within the class enumerated in the statute and so are foreclosed from inquiry as to plaintiff's legitimacy.As was said in Re Madalina, supra, 174 Cal. at page 696, 164 P. at page 350: 'This is the declared policy of this state and is simply the adoption of a rule prevailing generally in all civilized communities.'

The record reveals that the trial court, despite the provisions of section 195 of the Civil Code, deemed that the nature of defendants' controverting evidence, as embraced in an interlocutory decree of divorce between the decedent and Jeraldine Gonzales, made it proper for defendants to contest plaintiff's legitimacy.That litigation, as it herein appears, may be summarized as follows: In 1944the parties in their respective divorce pleadings each alleged that plaintiff was the issue of their marriage.Apparently the action was uncontested and the divorce was awarded to the wife on the ground of extreme cruelty.At the hearing she testified that the decedent was not the father of plaintiff, and the trial court, upon so finding in pursuance of her testimony, included in the interlocutory decree a provision awarding plaintiff's custody to her and reciting that the decedent should not be required to contribute to plaintiff's support.No final decree was ever entered, the wife, Jeraldine Gonzales, explaining that several reconciliations undertaken with the decedent were followed by successive separations, and adding that up to the time of his death he contributed intermittently to plaintiff's support.She also stated on both the first and second trials of this action that her testimony in the divorce proceedings with respect to the paternity issue affecting the status of the child was false and was given because she feared that otherwise the trial court might award the custody of plaintiff to the decedent.At the time of the divorce proceedings, she was but seventeen years of age.

While the interlocutory decree stood as a final adjudication between the husband and the wife on the issues there submitted, Leupe v. Leupe, 21 Cal.2d 145, 148, 130 P.2d 697;Borg v. Borg, 25 Cal.App.2d 25, 29, 76 P.2d 218;In re Estate of Hughes, 80 Cal.App.2d 550, 555, 182 P.2d 253, plaintiff was not a party to that litigation and he was not bound by the determination of his status therein.In re Estate of Walker, 176 Cal. 402, 412, 168 P. 689.The absence of a support order in the divorce decree stemmed wholly from a finding of non-paternity, and there would have been no legal basis for holding the husband liable in that action for the child's support.Such decree would in nowise be material here on the issue of plaintiff's right to recover for the pecuniary loss he claims to have sustained as the result of the decedent's death.SeeDavis' Administrator v. Cincinnati, New Orleans and Texas Pacific Railway Company, 172 Ky. 55, 188 S.W. 1061, 1063, Ann.Cas.1918E, 414;Note Ann.Cas.1918E, p. 419.Accordingly, the interlocutory decree of divorce was not admissible for any purpose in this action in challenge either of plaintiff's relationship to the deceased or of his right to recover damages consistent with his heirship claim herein.

Moreover, the trial court's instructions served to accentuate its error with regard to the relevancy of the divorce proceedings.Without detailing the instructions on the point, it is sufficient to state that they reflect the trial court's view that plaintiff's paternity claim was an open, controvertible issue for the jury's determination from the evidence as above outlined.But since defendants were precluded, under the circumstances shown by the uncontradicted evidence, from challenging plaintiff's legitimacy, and as to them, he was in legal effect conclusively presumed to be legitimate, plaintiff was entitled to an instruction plainly stating that fact to the jury in support of his heirship claim in this action.The trial court's failure to so charge constituted error of a most prejudicial nature.

In line with these observations, there remains one further point to be noted.During the second trial of this case, pl...